2007 PLP (C (PLC(CS))

JAWWAD S. KHAWAJA, J.

Through this judgment, we propose to decide the present appeal and I.C.A. No.195 of 2006, which arise respectively out of Writ Petitions Nos.712 of 2006 and 395 of 2006 filed by the appellants and others. The two appellants in the present I.C.A. are constables, while the appellant in I.C.A. No. 195 of 2006 is a Head Constable in the Punjab Police. All three are more than 35 years old. They are aggrieved of a part of the judgment of the learned Single Bench dated 23-5-2006, whereby the aforementioned writ petitions were partly allowed but the upper age limit for promotion of in-service Constables/Head Constables to the post of Assistant Sub-Inspectors was fixed at 35 years. The appellants, thus, stood excluded from consideration for promotion.

2. The facts of this case are relatively simple. The Punjab Public Service Commission (respondent No.4) issued an advertisement dated 1-1-2006 in the "Daily Jang", inter alia, for filling posts of Assistant Sub-Inspectors ("A.S.-Is.") from amongst graduate constables and Head Constables employed in the Punjab Police., A total of 1259 posts were to be filled from such in-service Constables and I-lead Constables. Here it may be noted that in the advertisement the upper age limit for such graduate constables was fixed at 33 years. The advertisement was based on Standing Order No.2 dated 29-9-2005 issued by the Inspector-General of Police (respondent No.1). The Standing Order, to the extent relevant for the purpose of the present appeals, is reproduced as under: "Standing Order No.2 of 2005 Subject: ?????????? Selection of A.S.-Is. from amongst Graduate Constables/Head Constables of the Punjab Police through Punjab Public Service Commission. This Standing Order is hereby issued to lay down the procedure for selection of graduate Head Constables/Constables for direct induction as A.S.-Is. Through Punjab Public Service Commission in pursuance of Article 7(3) of Police order, 2002. (i) Quota 25% of the posts meant for departmental promotion i.e. 19% of the total sanctioned strength. (ii) Age Limit Upto 33 years (as on last date fixed by Public Service Commission to submit the application). (iii) Eligibility (i) H.Cs. Graduate or above (ii) Constables. Graduate or above with at least 3 years service (iii) Should not have been involved in any act of moral turpitude or grave misconduct."

3. It is not disputed that except for the age limit the appellants meet the eligibility criteria set out in the Standing Order. The appellants along with others filed the writ petitions, mentioned in paragraph 1 above, to assail the Standing Order and, in particular, the fixation of the upper age limit at 33 years. It was their case that Article 7(3) of the Police Order, 2002, pursuant to which the Standing Order and the advertisement, mentioned above, had been issued, did not stipulate an upper age limit for induction of graduate constables and head constables as A.S.-Is. The appellants are aggrieved of the impugned judgment because the learned Single Bench has fixed the upper age limit for in-service candidates at 35 years. While fixing this age limit, the learned Single Bench has relied on the first proviso to Rule 3(v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 (the "Rules"). Rule 3(v) stipulates as under:-- "389[(v) in the case of a candidate already working as a Government servant, the period of his continuous service as such shall for the purpose of upper age limit prescribed under any service rules of the post for which he is a candidate, be excluded from his age.] 390[Provided the upper age limit shall not exceed 35 years for recruitment to any post to be filled in on the recommendations of the Punjab Public Service Commission on the basis of the combined competitive examination 39 [competitive examination.]]."

4. The case of the appellants is, firstly, that the second proviso to Article 7(3) of the Police Order does not prescribe any upper age limit for promotion of in-service Constables and Head Constables, who are graduates, and, therefore, the Rules, being contrary to statute, must yield to it. Secondly, it was argued that the Rules have no application in the present case because the appellants are not candidates for recruitment to the post of A.S.-I. but are claiming promotion to such post on the basis of their eligibility as per Article 7(3) of the Police Order.

5. We have heard learned counsel for the appellants and the learned Law Officer appearing for the respondents. It does appear to us that the Rules are applicable only in cases of recruitment and not for promotion. Rule 1(b) of the Rules specifically stipulates that the same "shall apply to the recruitment of all posts". The Standing Order and the advertisement, referred to above, wherein an age limit has been fixed, have been issued, as noted above, pursuant to Article 7(3) of the Police Order, 2002, which for facility of reference, is reproduced as under:-- "

7. Constitution of Police.

(1)

?????? ??????????? (2)

? (3) The recruitment in the police other than ministerial and specialists cadres shall be in the rank of Constable, Assistant Sub-Inspector and Assistant Superintendent of Police: Provided that selection for direct recruitment in the rank of Assistant Sub-Inspector shall be through the appropriate Public Service Commission and shall not exceed twenty-five per cent of total posts in that rank: Provided further that 25% of the quota for departmental promotions to the rank of Assistant Sub-Inspector shall be filled, subject to rules, through selection by the appropriate Public Service Commission from graduate Constables or Head Constables of clean record." (Underlining is ours for emphasis).

6. The distinction between recruitment and promotion is, by now, well-recognized and the connotation of the two terms is understood in legislation as well as case-law. This distinction has been reflected in the aforesaid statutory provision. Considering that the appellants were seeking promotion to the advertised posts of A.S.-I. and the Standing Order itself was based on Article 7(3), reproduced above, we are clear that the rules, which apply to recruitment only, did not apply to the in-service promotion envisaged in the second proviso to Article 7(3)for which the appellants were candidates. The controversy in the present case appears to have arisen because Standing Order No.2 of 2005 failed to take note of the essential distinction between promotion and recruitment and also was not consistent with the provisions of Article 7(3) of the Police Order, 2002. The Standing Order in paragraph 1 purports "to lay down the procedure for selection of graduate Head Constables/Constables for direct induction as A.S.-Is. in pursuance of Article 7(3) of Police Order, 2002". However, in clause (i) of the first paragraph, it has specifically been noted that it is meant for departmental promotion. If Article 7(3), reproduced above, is considered, it will become evident that graduate Constables and Head Constables are only recognized in the second proviso, which relates exclusively to promotion and not to direct recruitment. It is the first proviso to Article 7(3) of the Police Order which relates to direct recruitment in the rank of A.S.-I. for such direct recruitment, the law does not require a candidate to be either a graduate or a Head Constable/Constable in the police. It is also, clear to us from a bare reading of Article 7(3) of the Police Order that the Inspector-General of Police has not been given any power to lay down the procedure for direct recruitment of A.S.-Is. or indeed for promotion of in-service Constables and Head Constables. This matter lies exclusively within the domain of the Public Service Commission. The Government has, of course, been granted the power to regulate the promotion of in-service Constables and Head Constables by framing rules for this purpose. To elate, however, it has chosen not to exercise this rule-making power.

7. At this point, we would also refer, briefly, to the submission made on behalf of the appellants that rule 3(5) of the Rules, in any event, was applicable only where an upper age limit had been prescribed under any service rules. In the present case, it was argued on behalf of the appellants and not controverted by the learned Law Officer, that no upper age limit had been prescribed for promotion of in-service candidates to the post of A.S.-I. This note is being made by us because this point was urged by learned counsel for the appellants. However, in view of our finding that the Rules were not applicable to promotions, this observation has no hearing on the present case.

8. We also find merit in the contention of the appellants that the Standing Order could not have fixed an upper age limit for promotion, firstly, because Article 7(3) did not stipulate such upper age limit and, secondly, because there are no rules framed under the Police Order, 2002 fixing an upper age limit for such promotion. The Police Rules, 1934, which have, subject to limitations, been saved under Article 185(a) of the Police Order, 2002, also does not prescribe any upper age limit for promotion of in-service Constables/Head Constables to the post of A.S.-I. At this juncture, we may add that the learned Single Bench has held that "the impugned Standing Order is neither approved by the Provincial Government nor notified in the official Gazette [and] consequently, it does not have the status of rules conferred by Article 112 of the Police Order upon an instrument issued by the Provincial Police Officer having such attributes". We are in agreement with this observation and also note that the respondents have neither challenged this finding and nor has any argument been advanced against it on their behalf.

9. The learned Law Officer appearing for the respondents, however, referred to the case titled Muhammad Siddique v. Secretary to Government of Pakistan Ministry of Education and 2 others PLD 1996 SC 197 to contend that the Government has the right to enhance qualifications and standards for recruitment and promotion in order to maintain efficiency in service. There can be no dispute with this proposition. The said precedent, however, has no relevance in the present case because the Government has not issued any policy or rules having the sanction of law for the purpose of setting down the qualifications and standards for the promotions which are subject-matter of the present case. The impugned Standing Order has been issued by the Inspector-General of Police and not by the Government. We have already expressed our agreement with the finding of the learned Single Bench that Standing Order No.2 of 2005 cannot be equated with rules framed under the Police Order, 2002.

10. We also need to advert to a submission made by the learned Law Officer on the basis of the prayer made in these appeals wherein a reference has been made to a circular dated. 23-1-2006 issued by respondent No.1. This circular relates to enhancement in the upper age limit for inclusion of in-service Constables to promotions list B-1 and to the lower school course. This circular has no relevance in the present case in view of our decision recorded above. Learned counsel for the appellants also conceded that reference to the circular dated 23-11-2005 was misconceived and had been mistakenly made in the prayer clause in these appeals.

11. In the circumstances, we allow these appeals and modify the impugned judgment by holding that the upper age limit of 35 years fixed by the learned Single Bench for promotion of in-service Constables/Head Constables to the post of A.S.-I. is not in accordance with law. The appellants are, thus, not ineligible for promotion to the post of A.S.-I. on account of their age. S.M.B./N-112/L????????????????????????????????????????????????????????????????????????????????? I.C.A. allowed.